The Rumors are Brewing

We are hearing a lot lately about rescheduling marijuana from Schedule I to Schedule II under the federal Controlled Substances Act (“CSA”). The question is: would such a move be a good thing for the legalization effort? For the reasons set out below, we think not.

For decades, marijuana has been classified as a Schedule I drug under the CSA. This classification means the Federal Government has decided that marijuana has a high potential for abuse, no currently accepted medical use, and is unsafe to use under medical supervision.

Some marijuana reform advocates and members of the federal government have pushed to move marijuana from Schedule I to II. The United States Congress is also considering the so-called CARERS Act of 2015, which proposes to make that same change. Taken at face value, these efforts seem to be aimed at relieving some of the pressure caused by the legalization of marijuana at the state level. But, would moving marijuana to Schedule II (or even lower on the list) solve the problems that state law legalization has raised? Probably not. In fact, such a change would probably make things worse.

A Little Background

To understand the possible negative effects of a Schedule II reclassification, it will be helpful to have a little background. The CSA established five schedules for the classification of drugs and substances. All substances placed in one of the five schedules are defined as “controlled substances.” Schedule I is where drugs like heroin, peyote, LSD, mescaline, and psilocybin are classified. Marijuana is there as well.

If a substance is placed on one of the schedules, anyone who deals with that substance must be registered or licensed with the federal Drug Enforcement Agency (“DEA”). The DEA is supposed to then ensure that the substance is used only for legitimate medical and scientific purposes. That is, controlled substances can only be used for medical and scientificpurposes.

What Would it Mean if Marijuana Moved to Schedule II?

The goal of moving marijuana from Schedule I to Schedule II is to make it possible for physicians to prescribe marijuana for medical purposes. In addition, advocates hope to remove the Schedule I stigma, which might make things like banking and pesticide regulation more accessible to the marijuana industry. Unfortunately, the systems in place in many states authorizing the cultivation, sale and use of medical marijuana would not satisfy current FDA approval and control requirements which would apply to marijuana in Schedule II. Moreover, unlike the current structure under which FDA plays little or no role in marijuana regulation, moving marijuana to Schedule II would trigger an FDA role in testing and approval of marijuana applications (a very complex and expensive process), which would likely drive many small growers out of the business. Medical marijuana under a Schedule II classification would almost certainly become the exclusive product of the pharmaceutical industry, which has the financial and research resources to satisfy the FDA’s requirements.

The consequences for recreational marijuana would be even more drastic. Schedule II classification for marijuana would eliminate the possibility of creating a structure for legalized recreational marijuana use, since any drug or substance classified in any of the five CSA schedules may only be used for medical or scientific purposes. It’s worth noting that distilled spirits, wine, malt beverages, and tobacco are expressly excluded from the CSA. Those products could not be marketed or used the way they are if they were subject to FDA regulation as controlled substances.

In Summary

Marijuana’s classification as a Schedule I controlled substance has created myriad problems in attempting to legalize the medical and recreational aspects of this substance. The solution to these problems does not lie in simply making marijuana a Schedule II controlled substance. That would increase FDA’s role and make it more complex and costly to develop medical applications for marijuana. It would also continue the federal prohibition of recreational use. Only complete removal of marijuana from the CSA schedules will truly advance the legalization effort.